The following is from the beginning of Appleton Morgan’s 1875 treatise, “Law of Literature,” which has been said to have “codified the law of literary property in the United States.” 1The National Cyclopedia of American Biography, “Morgan, Appleton“, Volume 9, pg 452, James T. White & Co. (New York, 1899).

Before the invention of the art of printing, we have seen that literary compositions were published, either by delivery, by word of mouth, or by a laborious and careful copying of the manuscript upon parchment, which was then wound upon rollers into a volume or book. Still later, writings were published by being inscribed upon parchment, and scattered broadcast along the highways, or over the fields. Says the outlaw’s song of Trail le Baston:

Escrit estoit en parchemyn pur mont remember
Egitté en haut chemyn qe urn le dust trover. 2“It was written on parchment to be well remembered / And cast into the highway, that some one should find it.”

This method of publication seems to have been employed until quite the sixteenth century. We find mention of “a libel or book entitled ‘The Supplication of Beggars/ thrown and scattered at the procession in Westminster, on Candlemas day (2 February, 1562), before King Henry the Eighth, “for him to read and peruse”; and of Wolsey, complaining to that king, “of divers seditious persons having scattered abroad books.” So, too, Burdett was tried “for conspiring to kill the king and prince by casting their nativities, fortelling the speedie death of both, and scattering letters containing the prophecy among the people.” Copyright is a modern contrivance by which an author may, if he will, still scatter his productions to the four winds, and yet retain, if he will, the exclusive control over them, and over their further multiplication. It is a provision by which the contents of the scattered page are still his (disconnected from any possession in plate, or type, or paper, or in any other physical existence), constituting a property in which he can traffic, and which he can buy and sell and bestow.

The privilege of an author to the exclusive sale of his works for a limited number of years, although practically in the nature of a monopoly, is not a monopoly in the odious meaning of the term.

A monopoly proper is a right given to one individual to produce or traffic in a commodity which others are fully as able to produce or traffic in as he, if permitted to do so. A monopoly is a rule against competition. But there can be no competition in the productions of a man’s own brain. A man has, by natural law, a right to the exclusive power of first disposing of his own productions or manufactures; and the pursuit and enjoyment of that exclusive right can never be a monopoly. The author only has given him, by law, what in morality, equity, and good conscience, he had before. Or, to speak more accurately, the law gives him a method of asserting and protecting his right. Statutes of copyright only shift the burden of proof in favor of the author.

That copyright laws are beneficial to the public, as well as to the author, cannot be questioned. Rich and vast as are our stores of literature, how much richer and vaster might they have been, if the first English copyright act had been the act of Elizabeth instead of the act of Anne; or if the days of Chaucer, no less than the days of Dryden, had been enlightened by such protective legislation!

It is not improbable that we owe to the fact, that, in his day, a manuscript or published work, was practically without protection and not to be intrusted beyond the writer’s hand, that no authentic and authoritative text of Shakespeare exists, and nothing but inaccurate, interpolated, and expurgated texts of Fletcher, Beaumont, Webster, and a score of other contemporary writers. So long as a service to literature is a service to the people, copyright laws cannot be classed as mere individual monopolies. The only property which is reserved to the author, and which the law gives him, is the exclusive right to multiply copies of that particular combination of character which exhibits, to the eye of another, the ideas he intends to convey.

3 Comments

Oooh, I like that part about Shakespeare. Especially, since we’re regularly told that Shakespeare couldn’t have written his works had copyright existed in his day. (In fact, I dimly recall something along those lines being written by Larry L. in Free Culture. Back to school, professor?)

The Shakespeare example is unfortunate. Apart from the objection that a lot of Shakespeare’s own work would be considered ‘infringing’ by today’s standards, the author gets it wrong about why Shakespeare’s works were not published in his lifetime. De facto copyright in printed works did exist in Shakespeare’s time, as a result of the Stationers’ Company monopoly. The reason he didn’t publish his plays was probably to stop other theatre companies using them, to the detriment of his own company. In contrast he was quite content for his poems (the Sonnnets, etc) to be published.

But I like the author’s comments on ‘monopolies’. While it is true that copyright does in a sense give an author a statutory monopoly, it is a monopoly of a very special kind. There are three main ways in which statutory monopolies can be ‘odious':

a) they deny other suppliers a legitimate business opportunity;

b) they lead to inefficiency due to lack of competition; and

c) they enable the monopolist to charge unreasonable prices.

In the case of copyright point (a) does not apply. It is not ‘legitimate’ to base a business on using the fruits of someone else’s talent and effort without paying for it. Point (b) hardly applies either, since there is usually plenty of competition from other artists in the same medium; a novelist (say) is not in a position to say to himself ‘I’ll write a really bad novel this time because I will have a monopoly of selling it’.

Point (c) could occasionally be relevant. An artist or publisher (etc) who has exclusive rights to a very popular ‘product’ (e.g. the Beatles albums) could exploit this position by charging excessive prices. Of course it is debateable what is ‘excessive’. But it might make copyright law more ‘saleable’ if it included some provisions against potential abuse of monopoly power (as I think the law on patents does). Interestingly, the Statute of Anne did contain such provisions (most people don’t read to the end of the Act!), but so far as I know there is nothing like this in modern copyright laws.

Yes, Shakespeare’s unpublished works were only a result of his inability to exhibit such works because of circumstantial suppression. If his works were created in our time, you better believe they would be published, and in HIS name. Intellectual property is only considered a “monopoly” when the creator has reached success above and beyond. It seems sad such an overcoming of odds would spark such an outcry for regulation. Let the creator benefit from his/her successes with the same abundance as he/she must struggle to attain such success.

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Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently Director of Legal Policy at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.